STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE,
Petitioner,
vs.
EDWARD JAMES LEONARD, D.C.,
Respondent.
/
Case No. 19-1299PL
RECOMMENDED ORDER
Pursuant to notice, a disputed-fact evidentiary hearing was held in this matter on June 7, 2019, before Administrative Law Judge Elizabeth W. McArthur of the Division of Administrative Hearings (DOAH), by video teleconference at sites in Altamonte Springs and Tallahassee, Florida.
APPEARANCES
For Petitioner: Rose L. Garrison, Esquire
Amanda M. Godbey, Esquire Department of Health Prosecution Services Unit Bin C-65
4052 Bald Cypress Way Tallahassee, Florida 32399
For Respondent: Benjamin W. Newman, Esquire
Noelle K. Sheehan, Esquire
Wilson Elser Moskowitz Edelman & Dicker Suite 1200
111 North Orange Avenue Orlando, Florida 32801
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent committed sexual misconduct as charged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On August 2, 2016, the Department of Health (Department or Petitioner) filed an Administrative Complaint before the Board of Chiropractic Medicine (Board) against Edward James Leonard, D.C. (Dr. Leonard or Respondent). Respondent was charged with committing sexual misconduct while treating a patient identified as J.S., in violation of sections 460.412 and 460.413(1)(ff), Florida Statutes (2014), and Florida Administrative Code Rule 64B2-17.0021.1/
Respondent apparently timely filed an Election of Rights, requesting a disputed-fact hearing; the original Election of Rights is not in the record, but the Department does not contend that it was not timely filed. On March 13, 2019, the Department transmitted the Administrative Complaint to DOAH, along with an “Amended” Election of Rights signed by Respondent on March 4, 2019, for assignment of an administrative law judge to conduct the requested hearing. The reasons for the delay between issuance of the Administrative Complaint in August 2016 and transmittal of this case to DOAH in March 2019 are unknown, as
neither party raised any issues that would require record evidence explaining the delay.
On May 29, 2019, the Department filed an unopposed Motion for Leave to Amend Administrative Complaint, which was granted. The Amended Administrative Complaint, attached as an exhibit to the motion, was accepted and deemed filed as of May 29, 2019.
Prior to the hearing, the parties filed an Amended Joint Pre-hearing Stipulation, in which they identified their proposed witnesses and exhibits, set forth their objections to the other party’s proposed exhibits, and agreed to several statements of fact and law. The parties’ agreed facts have been incorporated in the Findings of Fact below to the extent relevant.
Both parties filed motions in limine a few days before the hearing, which were addressed on the record at the outset of the hearing.
At the hearing, Petitioner presented the live testimony of Darrel T. Mathis, D.C., who was accepted as an expert in chiropractic medicine. Petitioner also offered testimony by deposition of J.S., M.S., and Respondent. Respondent testified on his own behalf, and also presented the live testimony of Holly Ridge, D.C., and Alina Trett. In addition, Respondent offered testimony by deposition of Nick Finson, D.C., Giana Rodriguez, and Janet Russell.2/
The parties offered Joint Exhibits 1 and 2, which were admitted into evidence. Petitioner’s Exhibits 1 through 11 and
13 were admitted into evidence, including the transcripts of the depositions of J.S., M.S., and Respondent. J.S.’s deposition, which was conducted by video, was also admitted in video (DVD) form. The admission of J.S.’s and M.S.’s depositions was subject to and limited by the rulings on post-hearing objections to specific questions/answers and deposition exhibits, set forth in an Order on Written Objections to Depositions, issued July 15, 2019. Respondent’s deposition was admitted without limitation, as no written objections were made to specific questions/answers.
Respondent’s Exhibits 1 through 3--transcripts, DVDs, and flash drives of the video depositions of Nick Finson, D.C., Giana Rodriguez, and Janet Russell--were admitted into evidence, subject to and limited by the rulings on post-hearing objections in the July 15, 2019, Order. The single deposition exhibit attached to the transcript of Dr. Finson’s deposition (R. Ex. 1) was removed, however, because the Department’s objection to the admissibility of that document was sustained. The single composite exhibit to Janet Russell’s deposition (R. Ex. 3) was admitted for the limited purposes allowed for hearsay evidence.
Respondent’s argument that the Russell deposition exhibit was admissible as impeachment evidence rather than hearsay was rejected for reasons explained in the July 15, 2019, Order.
The two-volume Transcript of the hearing was filed on July 9, 2019. Both parties timely filed Proposed Recommended
Orders (PROs) on July 25, 2019, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes.
At all times material to this case, Respondent was a licensed chiropractor in Florida, having been issued license number CH 9186 on June 1, 2006.
At all material times, Respondent worked at and owned Florida Wellness and Rehabilitation Center (Florida Wellness), located at 101 North Franklin Street, Suite A, Tampa, Florida. He has been the sole or predominant owner of Florida Wellness since he started the business in 2006. Approximately ten years ago, Stephen Unger acquired a 13-percent ownership interest. Approximately eight years ago, Holly Ridge acquired an eight- percent ownership interest. Respondent retains a 79-percent ownership interest.
Respondent’s business has expanded over the years.
Florida Wellness now has five locations. In addition, over the last few years Respondent and his business partners established
other health care businesses, including a pharmacy in 2017 and a surgical center in 2018. The ownership shares of these other businesses are the same as for Florida Wellness.
Respondent now spends two days per week seeing patients at the Franklin Street location, and three days per week engaged in administrative matters to manage the businesses.
Respondent’s license has not been the subject of prior discipline.
In 2015, the Franklin Street location of Florida Wellness provided chiropractic care, acupuncture, family medicine by a family medicine physician, massage therapy by licensed massage therapists, and physical therapy ancillary to chiropractic care, provided by registered chiropractic assistants. Respondent described his practice as general chiropractic medicine, with an emphasis on treating automobile accident victims.
At issue in the Amended Administrative Complaint is an incident involving Respondent and a patient, J.S., during a visit for chiropractic services on March 5, 2015.
J.S. had been going to Florida Wellness for chiropractic treatment beginning November 10, 2014, following an automobile accident on or about November 1, 2014, that left him with neck, shoulder, and upper back pain. He and his then-partner, M.S., were in the accident together, and they were referred to Florida
Wellness by Morgan & Morgan, the law firm representing them with regard to the automobile accident.
J.S. had an appointment to see Dr. Leonard at 4:00 p.m. on March 5, 2015. His then-partner, M.S., drove him to Florida Wellness and went in with him to try to secure an impromptu adjustment. J.S. was met right away by Respondent, who took him back to a private treatment room. M.S., still waiting in the waiting area, saw Respondent escort J.S. back to a treatment room and close the door. M.S. said the door stayed closed; he did not see Respondent come back out. Shortly thereafter, M.S. was taken back for an adjustment by another chiropractor.
Once inside the treatment room, J.S. fully disrobed in preparation for treatment, facing towards a dresser against a wall. Respondent stayed in the treatment room while J.S. disrobed.3/
As Respondent admits, it is inappropriate for a chiropractor to remain in the treatment room while a patient disrobes.
J.S. testified that he had completely disrobed other times when treated by Respondent, based on Respondent’s advice, for ease of access to the targeted muscles.
Respondent said that he had no recollection of what he said to J.S. on this subject, but, nonetheless, denied that he advised J.S. to disrobe. He testified that he has a “canned”
speech that he gives to patients after he brings patients to a treatment room for manual therapy, telling them to undress to the extent they are comfortable doing so, and then to get on the treatment bed in between the bottom sheet and top sheet, covering themselves with the top sheet.
Inconsistently, Respondent informed the Tampa police, in an interview shortly after the incident on March 5, 2015, that whether he has his patients completely disrobe depends on what treatment he is providing. Respondent explained that he had J.S. completely disrobe because J.S. needed treatment in his hip and groin area.
J.S.’s clear memory of Respondent advising him to disrobe to assist in the treatment, consistent with Respondent’s explanation to the police an hour after the incident, is more credible than Respondent’s professed uncertain recall of what he told J.S. regarding disrobing. J.S.’s testimony is credited.
Fully disrobed, in Respondent’s presence, J.S. turned away from the wall and got on the treatment bed, face down, for Respondent to begin treatment.
J.S. was initially covered with a sheet, but Respondent pushed the sheet aside to begin manual therapy treatment to J.S.’s lower back, hips, buttocks, and the backs of his thighs (hamstrings).
Manual therapy includes myofascial release, trigger point therapy, and passive stretching. J.S. described the manual therapy to his lower back, hips, buttocks, and thighs as “massage.” Respondent said that the manual therapy he provides is different from massage, which he described as for relaxation. Respondent also said that he does not think massage is a covered service, presumably referring to third-party payor coverage.
J.S. testified that while he was going to Florida Wellness, he had not complained of pain in his lower region or hip area. His initial complaint was pain in the upper back, shoulder, and neck, and he did not subsequently report other areas of pain that developed.
However, early on in his treatment, Respondent diagnosed him with hip rotation, which was explained to J.S. as one of his legs being shorter than the other. According to J.S., the manual therapy treatment to his lower back, hips, buttocks, and thighs was explained as necessary to loosen tight muscles to help with the hip rotation. J.S. understood that, despite the fact that he did not subjectively complain of pain, this diagnosis followed from the objective findings and assessment to identify problems in addition to the pain he reported.
While J.S. was still face down on the treatment table, Respondent performed passive stretching to stretch the front of
his thigh. This stretch entailed bringing the foot towards the buttocks while lifting the bent leg up by the knee.
There is no legitimate reason for having a patient be fully disrobed to receive the manual therapy that Respondent administered to J.S., particularly not for this form of passive stretching. Instead, the leg being stretched would have to be uncovered, and even with careful draping and tucking (which did not occur in this instance), the sheet would necessarily be moved, with any tucking likely dislodged by the stretching movement. The risk would be high that the patient’s privacy-- particularly a patient with male genitalia--would be breached and the patient’s private parts unnecessarily exposed. In this instance, J.S. was fully and unnecessarily exposed, because Respondent had pushed the draping sheet off of J.S.
Given this risk with no commensurate legitimate reason for having a patient completely disrobed (whether under a sheet or not), professionalism dictates that a chiropractor would instruct a patient receiving this form of passive stretching to remain clothed or wear underwear, or the chiropractor would supply the patient with a treatment gown or gym shorts to change into. As Petitioner’s expert reasonably opined, this should be the practice even if a patient would be comfortable disrobing. It is up to the chiropractic physician to set the professional parameters for the treatment being provided, for the protection
of everyone involved, including the chiropractor. As Dr. Mathis put it: “[A] physician’s access to a patient’s body is a time- honored privilege and it’s very, it’s of the utmost importance that we maintain their modesty and respect their privacy. And also that demonstrates our professionalism and our respect for them as a patient.” (Tr. 74-75).4/
After the passive stretching while J.S. was face down, Respondent instructed J.S. to turn over. J.S. did so. He remained fully unclothed and uncovered by a draping sheet.
Respondent performed more passive stretching and then proceeded to administer manual therapy/massage to J.S.’s left adductor muscles, which run along the inside of the thigh from the knee to the pubic bone. The daily medical encounter record for March 5, 2015, does not document the subjective complaint or objective findings prompting this deep tissue/muscle work. J.S. confirmed in his testimony that he did not complain of hip pain, thigh pain, or groin pain. His understanding from Respondent was that the adductor work was a continuation of the loosening of muscles to address his hip rotation.5/
Respondent worked on the inside of J.S.’s left thigh from knee to groin. As he approached J.S.’s groin, he grazed J.S.’s scrotum and penis with the back of his hand. Respondent did not say anything and J.S. did not say anything. J.S.
testified that he thought it was incidental contact and did not think anything of it.
Respondent continued working on the inside of J.S.’s thigh. While Respondent was massaging the inner thigh, the back of his hand brushed the side of J.S.’s genital region once or twice more. J.S. did not think anything of this contact either, assumed it was accidental, and nothing was said about it.
As a result of the grazing, J.S.’s penis became partially erect.
Respondent finished working on J.S.’s left thigh, and walked around to the right side of the table to work on the right thigh. Respondent then gripped J.S.’s penis with his full hand, palm and fingers wrapped around, and he began stroking J.S.’s penis. Respondent stroked J.S.’s penis several times.
J.S. testified that he was frozen in shock and did not say or do anything. He believes the stroking continued for approximately one minute,6/ but admitted that his estimate of the duration may not have been an accurate perception under the circumstances. J.S.’s testimony describing Respondent having wrapped his fingers around J.S.’s penis and stroked it several times was clear, consistent, and credible, and is credited.
After Respondent released J.S.’s penis, Respondent apologized, saying: “Sorry, you got the best of me.”7/ He then instructed J.S. to turn back over, face down again, and he
proceeded to treat J.S.’s upper back, neck, and shoulder area, providing quick applications of pressure. J.S. described this treatment as adjustment-like, not exactly the popping and cracking of joints that one might associate with chiropractic adjustments, but quick pressure to help with alignment. The upper back-neck-shoulder treatment continued for a few minutes.
When Respondent finished the adjustments, he touched
J.S. on his shoulder and said, “Our secret?” J.S. responded, “Sure.” J.S. explained that he just wanted to keep a low profile and be compliant, so that he could get dressed and leave the room as quickly as he could without causing a stir (as might result if a naked young man ran out of a treatment room).
J.S. got dressed and left the room to go to the open physical therapy (PT) area, where he was scheduled for weighted neck treatment. He did not interact with anyone. Instead, he went directly to the weighted neck treatment chair on the far side of the open PT room facing a wall and sat down. The back of J.S.’s chair and the back of his head faced the open PT area, so he was not positioned to see or make eye contact with anyone else in the room.
J.S. was in the treatment chair and had already begun weighted neck therapy when M.S. finished with his adjustment and went to the PT area to find J.S.8/ When M.S. entered the room, he saw that Respondent was there, too, standing at a computer
station, four or five feet behind the back of J.S.’s treatment chair. M.S. walked over to J.S.’s treatment chair, and he could see that J.S. was upset. J.S. reached for M.S.’s hand, which
M.S. said that J.S. hardly ever did, as they tried not to engage in public displays of their affection. M.S. stood next to J.S. for a while and then went to sit on a therapy ball in the middle of the room to wait for J.S. to finish.
Based on the substantially more credible evidence, J.S. was visibly upset and uncomfortable while in the open PT area. His demeanor upon completing the neck PT therapy was captured on an office surveillance video showing part of the open PT room, and it confirms M.S.’s description of J.S. as upset. The recording (video only) for March 5, 2015, has a time counter that begins at 4:31:53 p.m. and stops at 4:33:29 p.m. J.S. was initially blocked from view, but became visible when he rose from the weighted neck treatment chair, turned, and traversed the room. Respondent and J.S.’s partner, M.S., were also in view in the video.
Respondent testified that J.S. did not appear to him to be upset or uncomfortable when he was in the open PT room, but the office surveillance video discredits his testimony. Indeed, the video shows that not only did J.S. appear upset and uncomfortable, but also, Respondent himself was noticeably uncomfortable.
Respondent did not say how long he was in the open PT area while J.S. sat in the treatment chair with his back to the room, but Respondent did not contradict M.S.’s testimony that Respondent was standing at the computer station four feet behind the back of J.S.’s chair when M.S. entered the room. That is where Respondent was at the beginning of the video. Respondent had no view of J.S. from that position, except possibly the top and back of J.S.’s head and shoulders.
Respondent had a brief opportunity to see J.S.’s expression and demeanor when J.S. rose after his treatment to cross the room to M.S. The video shows this: J.S.’s eyes were downcast. He was not smiling. He did not appear happy or relaxed. Instead, he appeared uncomfortable and upset. Before
J.S. walked past Respondent, J.S. reached up to his chest at the V-neck of his shirt, and then started rubbing the side and back of his neck, either in pain following the neck therapy or in discomfort.
J.S. did not raise his eyes to look over to Respondent as he walked past the far side of the standing desk where Respondent stood behind a computer monitor. Respondent appeared to say something as J.S. walked by, but J.S. did not look at Respondent even when he said something. J.S. testified that he believes Respondent told him what room to go to for electrical stimulation (e-stim) treatment, but that J.S. did not look at
Respondent because of J.S.’s discomfort. J.S.’s eyes remained downcast and he kept rubbing his neck.
When J.S. got to M.S.’s side, Respondent said something in their direction. He stepped out from behind the standing desk and took a few steps toward J.S. and M.S. J.S., still holding his neck, only looked at M.S., who gestured in a direction out of camera range. J.S. walked off in that direction, still holding his neck, and M.S. stood up and turned to follow J.S.
As J.S. started to walk away in the direction that M.S. had gestured, Respondent stepped back, awkwardly touching his right hand near the front of his pants at the hip, then back toward the right buttock, and then he wiped his right hand on his right buttock in an awkward gesture of discomfort. (Jt. Ex. 2 at 4:33:22-4:33:24).
Respondent then walked back behind the standing desk, reached both arms out over the computer keyboard as if he was going to type something, then immediately jerked his arms and hands back in another awkward display, as if he did not know what to do with his hands. (Jt. Ex. 2 at 4:33:26). He again stepped out from behind the standing desk, walked a few steps back towards M.S., and said something. As he did, Respondent began rubbing his left wrist and hand with his right hand, continuing the uncomfortable, awkward gestures. (Jt. Ex. 2 at 4:33:27-
4:33:28). The office surveillance video stopped the next second, at 4:33:29 p.m.
J.S. and M.S. both testified that J.S. was scheduled to receive e-stim treatment after the neck therapy. J.S.’s care plan called for e-stim, and he said that it was part of the regular treatment he received, in addition to adjustments, massage (manual therapy), and weighted neck physical therapy.
E-stim treatment is administered by one of the chiropractic assistants in one of the private treatment rooms.
Rather than stay for e-stim treatment, J.S. left with
M.S. after letting someone know that he did not want to stay for the additional treatment.9/
After walking out of the office, J.S. broke down crying. J.S. and M.S. went to their car in the parking garage, and J.S. told M.S. what happened. M.S. called the police, and two officers arrived 15 minutes later. Apparently Officer Graham, a white male, spoke with J.S. first, and then both Officer Graham and Corporal Penix, a dark-skinned female (see
P. Ex. 6 at 1:54), interrogated J.S. while recording the encounter with an audio and video recorder. A DVD of the encounter is in evidence.
The video shows that J.S. was treated with a degree of harshness, as if he was an accused rather than a complainant. For example, at the beginning of the recording, Corporal Penix
stated that Officer Graham was going to “read you your . . . ,” and then corrected herself to say that Officer Graham was not going to read him his rights, but was going to swear in J.S., so that his interview was under oath. (P. Ex. 5 at 0:37-0:41).
J.S. was questioned by the police while he sat in the passenger seat of the car in the parking garage. M.S. was waved away by Corporal Penix as the officers approached the car, so
M.S. stood nearby, out of the way. The audio part of the interview was not very good, with a lot of background noise (from the parking garage, among other things), but J.S.’s statements were consistent with his subsequent written statement and his video deposition, in all material respects. J.S. appeared upset and uncomfortable in expression, demeanor, and body language. He rubbed at the side of his neck throughout much of the questioning.
Officer Graham asked J.S. if he was hard when Respondent was stroking his penis, and J.S. said yes. Officer Graham then asked if J.S. ejaculated. J.S. said no.
The two police officers then went to the Florida Wellness office. Corporal Penix operated the video recorder, and began recording (video only) as the officers approached the glass front office, before opening the glass door. Respondent was visible through the glass, as he was in the lobby before the police entered the office. When the officers entered the lobby,
Respondent reached out to shake hands with each of them, and ushered them back to a private treatment room.10/
Once secured in the private treatment room, Corporal Penix added the audio portion to the recording, and the interview began. Respondent was not read his rights or sworn in. He was asked what happened with J.S. He stated that J.S. had issues in a sensitive area, and Respondent was treating that area. He then said that there was a graze of his hand on J.S.’s genitals, “which elicited a sexual response.” Making a face, Respondent added, “and it stayed that way.” (P. Ex. 6 at 1:16-1:17). Respondent then said that it got a little awkward, so he told
J.S. that if he is uncomfortable, Respondent could stop treatment, but J.S. said no, everything is fine. So Respondent said he proceeded for another eight minutes or so. Respondent then said that because it was “really awkward” in that eight minutes, Respondent stopped and left the room. He said he immediately informed his colleague about what happened and documented it as “part of the medical encounter.” (P. Ex. 6 at around 1:35).
Respondent initially took the officers to a treatment room that did not resemble the room described by J.S. in his testimony. This room had a segmented adjusting table, not covered by a sheet, along with two chairs, a desk with a computer station, shelves, and several pieces of equipment. After
Respondent completed his description of what happened, Corporal Penix asked if they were in the room where J.S. was treated, and Respondent said no. He escorted them to a smaller, low-lit room that matched J.S.’s description. The room was dominated by a massage-type table/bed with a pillowed face rest, diagonally centered so that there would be space to walk around it. Other than the treatment bed, there was not much in the room: a small dresser against the wall to the right of the door, a shelf against the wall to the left of the door, a small hamper next to the shelf, and two small wastebaskets on either side of the bed. No chair, stool, or equipment was visible in the room.
The interview continued in the room where it happened.
Officer Graham asked whether, when Respondent said he was working on a sensitive area, he was talking about the penis. Respondent quickly said no, then with hands gesturing, said (or stuttered), “Hip. Hip-hip, hip-hip.” (P. Ex. 6 at 2:24-2:25).
Corporal Penix asked Respondent whether J.S. had his clothing on, and Respondent said J.S. had taken his clothes off. Corporal Penix then asked whether J.S. kept his underwear on, and Respondent said no. When asked if he typically had his patients completely undress, Respondent said that it depends on what kind of treatment they need, and that for J.S., he was an ex-dancer, and “did a lot of splits and things in his groin area.”
(P. Ex. 6 at 2:87).
Officer Graham summarized what he had written down in his notes, including that Respondent said he grazed the genitals with his elbow or arm. Respondent corrected him, saying that he grazed the penis with his hand and forearm, pointing to the outside of his left hand, followed by a sweeping gesture up his forearm to just below the elbow. (P. Ex. 6 at 3:20-3:22).
Officer Graham continued with his summary, stating that Respondent’s grazing action caused J.S.’s penis to be erect. Respondent appeared to hesitate before confirming that statement, so Officer Graham added, “Or was it already erect?” Respondent first said that it seemed a little, maybe, but then said that he was not really focusing on it. (P. Ex. 6 at 3:27-3:32).
Corporal Penix then asked Respondent to show the positioning and movement: where J.S. was on the bed and how Respondent was moving with his arm to show how it grazed.
(P. Ex. 6 at 3:50-3:59). Respondent said that J.S. lay on his back, with his head at the top of the bed (where the pillowed face rest is). Respondent then showed his positioning: he stood on the side of the bed where J.S.’s left side was, facing the top of the bed where J.S.’s face would have been. Respondent said he was working on J.S.’s adductors, gesturing to the imaginary thigh closest to where Respondent stood. Respondent demonstrated the movement of his left hand and forearm while working on J.S.’s adductors. From Respondent’s positioning, showing the pressure
he was applying to an imaginary inside thigh on the half of the bed closest to where Respondent stood, Respondent demonstrated that he was working on J.S.’s left adductors. Respondent then made a sliding gesture forward (towards J.S.’s face) and across (from J.S.’s left inner thigh to J.S.’s left hip), demonstrating how Respondent’s left hand and forearm slid across J.S.’s groin area. (P. Ex. 6 at 4:00-4:11).
At the hearing, Respondent testified to an entirely different scenario resulting in the grazing. Respondent did not say that he was standing next to J.S.’s left side, facing in the direction of J.S.’s face, with Respondent’s hand and arm movement going forward, sliding across J.S.’s genitalia. Instead, at the hearing Respondent said that he was sitting in a chair (also described as a stool) on the right side of the table, in line with J.S.’s knees, reaching across his right knee to work on the left adductors from knee to groin. Respondent said that J.S. was draped with a sheet across his genitals, and that as Respondent approached the groin area, Respondent made contact with something, looked up, and saw that what he made contact with was J.S.’s penis, which was fully exposed. Respondent said that he did not notice that J.S.’s penis had become uncovered by the sheet, because Respondent was looking at J.S.’s left knee. He said that he made contact with the medial aspect of his left hand and his wrist, though he said it was more wrist than hand.
Several weeks earlier in deposition, Respondent testified that he could not remember which side of the treatment bed he was on or which leg he was working on when the grazing occurred. He also said that he grazed J.S.’s genitals with the medial aspect of his hand and “potentially the wrist.”
(P. Ex. 13 at 65).
Respondent admitted that when his hand/wrist touched Respondent’s penis, it was skin-on-skin contact. But Respondent claimed that J.S. was draped with a sheet the entire time, except for when J.S.’s penis became exposed. Respondent said that his position, sitting on J.S.’s right side at knee level, with his focus towards J.S.’s left knee, kept him from noticing the sheet had slipped, exposing J.S.’s penis, until contact was made.
It is, perhaps, conceivable that someone seated in a chair or stool on the right side of a massage table, staring only at the left knee of a person laying face up on the table, might not be able to see an exposed penis, if the person on the table were to suddenly be exposed. However, it is not conceivable that Respondent, from that position, could reach up and over the right leg of his patient to apply compression pressure effectively with the hard part of the palm to the inner thigh of the patient’s left leg. It is even more inconceivable that Respondent would remain focused on the patient’s left knee while Respondent applied that compression pressure all the way down the inner
thigh from the knee to the groin. That is a contortion that defies logic.
Respondent’s testimony at hearing was not as credible as his demonstration to the police an hour or so after the incident. The changes in the description appear calculated to support his claims that J.S. had been draped with a sheet until it somehow moved, and that Respondent would not have noticed J.S.’s exposed penis until after he touched it. Respondent’s demonstration of his own positioning and movements shortly after the incident leaves no doubt that, had J.S. been draped and had the drape accidentally slipped before contact, Respondent surely would have seen it and professionally would have been obliged to correct the draping.
The police officers asked Respondent if they could speak with the colleague to whom he reported the incident, and he agreed to let them talk to Holly Ridge, D.C. Dr. Ridge reported that Respondent took her into the treatment room where the incident happened, immediately after it happened. She said that Respondent told her that during an acupuncture session with J.S., while working on J.S.’s adductors near his groin, there was an accidental grazing of Respondent’s hand on J.S.’s penis, which resulted in sexual arousal--an erection. Respondent told her that he asked J.S. if he was uncomfortable, and that he could stop treatment, but J.S. said he was fine.
Dr. Ridge added that she and Respondent discussed documenting the incident, and Respondent wanted her opinion about where to record it. They agreed it should go in the “patient notes” section of the patient chart, and Respondent did that.
In the Florida Wellness EMR system, the “patient notes” section is not part of the patient’s medical records. It was described as for internal communications, such as whether a patient prefers to go by her middle name instead of first name. It was Respondent’s intention to create the note as “evidence,” but to exclude it from the daily medical encounter report. Therefore, Respondent’s note of the incident is not found in J.S.’s daily medical encounter record for March 5, 2015. In fact, the “note” is not in evidence, because Respondent only offered a screenshot of a computer image as opposed to an actual printout, and the screenshot provided at hearing was not legible. Nonetheless, Dr. Ridge was permitted to testify to the note’s contents, and Respondent was permitted to testify that the time stamp on the screenshot was 4:48 p.m., on March 5, 2015.
Respondent said that he did not want to include his note regarding the incident in the actual medical encounter record, out of fear that it would create problems for J.S.’s lawsuit regarding the automobile accident, an explanation that makes no sense. Respondent told the police that he documented
the incident as part of the medical encounter, earning him a comment from Corporal Penix that Respondent did the right thing.
Respondent and Dr. Ridge both told the police that Respondent reported the incident to Dr. Ridge immediately after it occurred. Respondent testified in his deposition that he reported the incident to Dr. Ridge immediately or within a few minutes afterward; his memory was that it was the first thing he did after finishing J.S.’s treatment. But that is not what happened. Once again, there is a timeline problem.
After the incident, and after J.S. got dressed and went to the PT area for his weighted neck therapy, Respondent also went to the PT area. It was not until after Respondent saw that
J.S. was upset when J.S. finished his neck treatment--and Respondent showed some discomfort himself--that Respondent sought out Dr. Ridge and the internal note was created, approximately 15 minutes after the end of the office surveillance video. Respondent apparently realized the timeline problem before the hearing, because his testimony was revised to say that he talked to Dr. Ridge after he was in the PT area (without offering an explanation for the inconsistencies).
The record is replete with other inconsistencies, large and small, in Respondent’s explanation of the incident itself.11/ Touching on just a few, Respondent testified in deposition and at hearing that the incident was not awkward, nor was the completion
of treatment to J.S. after the incident. In contrast, Respondent told the police that the incident was awkward, and that it got “really awkward” in the eight minutes during which Respondent said he continued treatment. Respondent testified that he did not notice J.S.’s penis before contact was made, and after contact he immediately covered J.S.’s genitalia and did not notice the condition of J.S.’s penis thereafter. But Respondent told the police that J.S.’s penis “seemed a little, maybe” erect before the grazing, that the grazing elicited a sexual response, and (making a face) that it stayed that way.
Respondent’s final step, taken the following morning, was to speak with J.S.’s attorney at Morgan & Morgan, and accede to the attorney’s request for Respondent to determine that J.S. had achieved maximum medical improvement, a legal term of relevance to the attorney in the lawsuit against the person who hit M.S. and J.S.’s automobile.
From November 10, 2014, through March 5, 2015, each of J.S.’s daily medical encounter records had the same care plan:
Based on the patients [sic] presentation, and current prognosis, it is my opinion the patient should be treated with manipulative and physiological therapeutics three times a week for four to six weeks. These therapies will consist of therapeutic exercises, stretching, mobilization/manipulation of involved joints, trigger point treatment and electric muscle stimulation. (Jt. Ex. 1 at Bates 9).
The plan changed overnight, without any re-evaluation of J.S. At 9:55 a.m. on March 6, 2015, Respondent electronically signed, after reviewing and revising, an “update” to J.S.’s care plan. In the update, Respondent concluded as follows: “I believe that [J.S.] has reached a point of Maximum Medical Improvement from our conservative care. He is released from my care and should return to a different chiropractic physician if [needed in the future].” (Jt. Ex. 1, Bates p. 74). Although Respondent opined in the medical record (at the attorney’s request) that J.S. “has” reached maximum medical improvement, Respondent testified in deposition and at hearing that it was only a “possibility” that J.S. had “potentially” reached maximum medical improvement. (P. Ex. 13 at 118; Tr. 303).
Respondent admitted he discharged J.S. as a patient because J.S. complained to the police about the incident. Respondent said he regrets not documenting in the medical record the real reason he discharged J.S. (but that would have undercut his opinion that J.S. had reached maximum medical improvement).
After March 5, 2015, J.S. did not attempt to return for more treatment by Respondent or anyone else at Florida Wellness.
J.S. enlisted in the United States Navy. He testified in April 2019 by video deposition in lieu of hearing testimony while on his last vacation before going to Mississippi for four months of training, followed by deployment to Guam.
After March 5, 2015, M.S. stopped going to the Franklin Street location of Florida Wellness, which is the only location where Respondent sees patients. M.S. still goes to Florida Wellness, but at a different location with different physicians.
J.S. and M.S. are no longer in a relationship. They split up in 2017.
No lawsuit was brought against Respondent by J.S. and/or M.S. on account of the incident.
Summary with Ultimate Findings of Fact
There has never been a dispute that Respondent came into skin-on-skin contact with J.S.’s genitalia. The issue is whether, as J.S. asserted, there was intentional contact. Respondent denied that he grabbed J.S.’s penis and stroked it, but Respondent never landed on a credible explanation of the
skin-on-skin contact that he admits did occur. His ever-shifting descriptions of the incident, including where he was (left or right side, sitting or standing), how contact was made with what part of Respondent’s hand and/or wrist and/or forearm, how J.S.’s penis came to be exposed, and how Respondent could not have noticed an exposed partially erect penis before coming into contact with it, undermine the credibility of Respondent’s claim that the contact was accidental.
In addition, Respondent admitted, initially, that he remained in the treatment room while J.S. fully disrobed.
Respondent’s attempt to later deny that he had done so and offer an incongruous explanation for his prior admission substantially undermined Respondent’s credibility. What is left is the impression that the truth was retracted upon reflection that admitting to inappropriate conduct to start the treatment session casts doubt on Respondent’s explanation of what happened thereafter.
The credible, clear, and convincing evidence establishes that Respondent intentionally touched J.S.’s penis, grasping and stroking it, on March 5, 2015.
Respondent had no medical reason to touch J.S.’s penis, as the parties stipulated.
The parties also stipulated that a chiropractor who has purposely made intentional physical contact to a patient’s penis for non-diagnostic or non-therapeutic purposes has committed sexual misconduct.
Having purposely made intentional physical contact to J.S.’s penis for non-diagnostic and non-therapeutic purposes on March 5, 2015, Respondent committed sexual misconduct.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.569 and 120.57(1), Florida Statutes (2019).
By its Amended Administrative Complaint, Petitioner has charged Respondent with engaging in sexual misconduct with J.S. on March 5, 2015, in violation of sections 460.412 and 460.413(1)(ff), and rule 64B2-17.0021, for which Petitioner seeks to impose discipline up to and including revocation of Respondent’s license.
A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel.
Vining v. Fla. Real Estate Comm’n, 281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears the burden of proving the charges against Respondent by clear and convincing evidence, as Petitioner acknowledged at the outset of the hearing. Fox v.
Dep’t of Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932
(Fla. 1996)).
As stated by the Florida Supreme Court:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 492 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden
of proof may be met where the evidence is in conflict; however, “it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA
1991).
Disciplinary statutes and rules “must be construed strictly, in favor of the one against whom the penalty would be imposed.” Griffis v. Fish & Wildlife Conser. Comm’n, 57 So. 3d
929, 931 (Fla. 1st DCA 2011); Munch v. Dep’t of Prof’l Reg., Div.
of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); McClung v. Crim. Just. Stds. & Training Comm’n, 458 So. 2d 887,
888 (Fla. 5th DCA 1984).
Respondent may not be found guilty of an offense that was not charged in the Amended Administrative Complaint. See, e.g., Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA
2005) (administrative complaint charged physician with a failure to create medical records; proof of a failure to retain medical records cannot support a finding of guilt). Furthermore, due process prohibits the Department from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967
(Fla. 5th DCA 1992).
Section 460.413(1)(ff) provided in 2014 that “[v]iolating any provision of this chapter or chapter 456, or any
rules adopted pursuant thereto” constitutes grounds for disciplinary action.
The Amended Administrative Complaint charged Respondent with violating section 460.412, providing as follows:
The chiropractic physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of chiropractic medicine means violation of the chiropractic physician-patient relationship through which the chiropractic physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of chiropractic medicine is prohibited.
The Amended Administrative Complaint also charged Respondent with violating rule 64B2-17.0021, which provides:
The chiropractic physician/patient relationship is founded on the trust and confidence that a patient places in the chiropractic physician, and this rule is intended to prevent a chiropractic physician from taking advantage of that trust for the chiropractic physician’s own pleasure, satisfaction or benefit. To protect both the chiropractor and the patient, the Board recommends the presence of a third person during a chiropractic physician’s examination and treatment of a patient.
No chiropractic physician may engage in sexual misconduct with a patient of the chiropractic physician.
Sexual misconduct is any direct or indirect physical contact by any person or between persons which is intended or which is
likely to cause to either person stimulation of a sexual nature. Sexual misconduct includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. Sexual misconduct also includes the activities described in subsections
through (8), of this rule.
A licensee who fails to inform a patient when the licensee must touch the patient’s breasts or genitalia for diagnostic or therapeutic purposes, or a licensee who disregards a patient’s request that the licensee not touch the patient’s breasts or genitalia, is guilty of sexual misconduct.
A licensee who makes suggestive, lewd, or lascivious remarks to a patient or who performs suggestive, lewd, or lascivious acts in the presence of a patient is guilty of sexual misconduct.
A licensee who intentionally touches a patient’s breasts or sexual organs for non- diagnostic or non-therapeutic purposes is guilty of sexual misconduct, regardless of whether the patient is clothed.
A licensee who makes intentional contact with or who penetrates a patient’s oral, anal, or vaginal orifice with the licensee’s own sexual organ is guilty of sexual misconduct.
A licensee who makes intentional contact with or who penetrates a patient’s oral, anal, or vaginal orifice with any object for any purpose other than a professionally recognized diagnostic or therapeutic purpose is guilty of sexual misconduct.
Definition of patient. A patient is any person who was being examined or who was under the care or treatment of the chiropractic physician when the incident or incidents of sexual misconduct allegedly occurred, regardless of whether the person
was billed by or was paying for chiropractic services from the licensee who is accused of sexual misconduct. A person shall be considered a patient until after one year has elapsed since the last date on which the chiropractic physician examined or treated the person.
Consent as a defense. Because of the control that a chiropractic physician exercises in the physician/patient relationship, a patient’s consent may not be used by the chiropractic physician in the defense of an allegation of sexual misconduct on the part of the chiropractic physician.
Based on the Findings of Fact above, Petitioner proved, clearly and convincingly, that Respondent is guilty of committing sexual misconduct by intentionally grasping and stroking J.S.’s penis on March 5, 2015.
Any implication by Respondent that J.S. invited the intentional contact by becoming erect or partially erect after accidental grazings may have been a distraction to the police officers investigating J.S.’s complaint. However, it is irrelevant to the disciplinary charges at issue here.
As made clear in both section 460.412 and rule 64B2- 17.0021, the utmost care is required to ensure chiropractic physicians uphold the time-honored privilege of access to their patients’ bodies, and do not take advantage of the control they exercise in the physician/patient relationship. There can be no defense of consent in this professional license regulatory context.
The Appropriate Penalty
Florida Administrative Code Rule 64B2-16.003 contains the Board’s disciplinary guidelines, setting forth penalty ranges for violations of chapter 460 and related rules. Paragraph (1) provides that the Board “shall issue a final order imposing appropriate penalties . . . within the ranges recommended” in the rule. Paragraph (2) sets out aggravating and mitigating circumstances that may be considered to determine the appropriate penalty to impose and to deviate from the penalty ranges in the rule. The rule version effective May 11, 2010, was in effect at the time of the incident, and that version has been applied.
Rule 64B2-16.003(1)(f) prescribes the normal penalty for a violation of section 460.412, ranging from a minimum of a one-year suspension followed by two years of probation and a fine of not less than $1,000, to a maximum of permanent revocation; from a minimum of letter of concern and/or a PRN referral for evaluation up to a maximum fine of $10,000 and/or permanent revocation.
Rule 64B-16.003(1)(ll) prescribes the normal penalty for a violation of section 460.413(1)(ff), ranging from a minimum of a fine of $1,000 and/or a letter of concern up to a maximum fine of $10,000 and/or permanent revocation for a first offense.
Consideration has been given to mitigating and aggravating circumstances authorized by rule 64B-16.003(2). As
for mitigating circumstances, there is only a single offense, and Respondent had been a practicing chiropractic physician pursuant to his license for nearly nine years before the incident that gave rise to this disciplinary action. There is no evidence of any other patient incident, complaint, or prior discipline.
Suspension or revocation of Respondent’s professional license would have a significant effect upon his livelihood.
The aggravating circumstances provide counterweight to the mitigating circumstances. Respondent’s conduct was intentional, and sexual misconduct in the practice of chiropractic medicine, a health care profession, constitutes a very great danger to the public. An appropriately serious consequence would have a deterrent effect on other practitioners, and would reinforce the important principles in the Board’s sexual misconduct statute and rule. Further, of particular significance here, Respondent has displayed no remorse that could hint at rehabilitation. Instead, from the beginning in his interview with police, through the final hearing testimony, Respondent was evasive, changing his story every which way, to avoid responsibility for his actions.
As outlined in 64B2-17.0021, the chiropractic physician/patient relationship is “founded on the trust and confidence that a patient places in the chiropractic physician, and this rule is intended to prevent a chiropractic physician
from taking advantage of that trust for the chiropractic physician’s own pleasure, satisfaction, or benefit.” This trust was shattered when Dr. Leonard grabbed J.S.’s penis for
Dr. Leonard’s own pleasure, satisfaction, or benefit.
Section 456.072(4), Florida Statutes, provides that in addition to any other discipline imposed for violation of a practice act, the Board shall assess costs related to the investigation and prosecution of this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding Respondent guilty of violating section 460.413(1)(ff), Florida Statutes (2014), through a violation of section 460.412, Florida Statutes (2014), and rule 64B2-17.0021, as charged in the Amended Administrative Complaint; revoking Respondent’s license to practice chiropractic medicine; and imposing costs of the investigation and prosecution of this case.
DONE AND ENTERED this 13th day of September, 2019, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2019.
ENDNOTES
1/ References to Florida Statutes are to the 2014 codification and references to rules are to the versions in effect when the alleged incident occurred on March 5, 2015, unless otherwise noted. See McClosky v. Dep’t of Fin. Servs., 115 So. 3d 441 (Fla. 5th DCA 2013) (in disciplinary proceedings, allegations must be measured against the law in effect at the time of the acts alleged to warrant discipline).
2/ With regard to the non-party deponents, the parties stipulated to use of their deposition testimony in lieu of live testimony.
They did not stipulate to the factual predicates for admitting the depositions in lieu of live testimony. The necessary factual predicates were established for J.S. and M.S. by their deposition testimony that at the time of the hearing, they were both going to be more than 100 miles away from either video teleconference hearing site, allowing use of their depositions for any purpose pursuant to Florida Rule of Civil Procedure 1.330(a)(3)(B).
Likewise, it appears that Dr. Finson’s home address is more than
100 miles away from either video teleconference hearing site. As for the deposition of Janet Russell, a Department investigator who investigated J.S.’s complaint against Respondent, arguably her deposition testimony established that she had become a managing agent of the Department as an investigator supervisor at
the time of her deposition, making her deposition admissible under rule 1.330(a)(2). However, no deposition testimony was elicited from Giana Rodriguez and no other record evidence was offered to establish a factual predicate for finding that this witness was unavailable to appear and testify live at the hearing. Her address of record is less than 100 miles from the Altamonte Springs video teleconference hearing site.
Nonetheless, since Petitioner stipulated to the use of
Ms. Rodriguez’s testimony in lieu of live hearing testimony, the deposition testimony will be accepted on that basis, to avoid prejudice to Respondent in relying on the stipulation.
Respondent’s deposition was admitted for all purposes, over objection. Counsel for Respondent argued that Respondent was available to testify so the deposition testimony was unnecessary, and that Respondent’s deposition was taken during discovery and, as such, could only be used for impeachment and not as substantive evidence. No authority was offered to support this objection, and the law is to the contrary. Respondent’s deposition transcript, offered by the adverse party, is admissible for all purposes pursuant to rule 1.330(a)(2).
See, e.g., Diaz v. Impex of Doral, Inc., 7 So. 3d 591, 595 (Fla. 3d DCA 2009) (“Florida law . . . provides for the use of the deposition of the opposing party as substantive evidence at trial. The fact that the deponent was available is irrelevant regarding whether the deposition may be used at trial.”) (internal citation omitted); Warner v. Reiss, 623 So. 2d 777 (Fla. 1st DCA 1993) (deposition of a party is admissible when offered by the adverse party, under both rule 1.330(a)(2) and section 90.803(18)(a), Florida Statutes (party admissions)).
Respondent could have utilized the post-hearing process to object to the admissibility of specific portions of Respondent’s deposition testimony on other grounds, such as relevance or cumulative testimony, but no objections were filed.
3/ J.S. testified clearly, credibly, and without hesitation or confusion that Respondent was present in the treatment room while
J.S. removed all of his clothing. There was no privacy screen or cubicle for disrobing. He described the small room, dominated by a treatment bed/table, with a dresser on the wall to the right of the door. J.S. said that he stood facing the dresser and wall while he disrobed, and did not look at Respondent, but the layout of the room makes it clear that there was no privacy accorded to
J.S. by Respondent while J.S. took his clothes off. J.S.’s testimony is credited.
Respondent admitted, initially, that he was present in the treatment room when J.S. disrobed on March 5, 2015. He was asked by the Department in interrogatories: “Were you present in the treatment room when Patient J.S. disrobed on March 5, 2015?” Respondent’s answer was: “Yes.” (P. Ex. 10 at 5, no. 16).
Despite this unqualified admission, in deposition and at hearing, Respondent gave a different answer. At hearing, when asked by his attorney whether he was in the treatment room when J.S. disrobed, Dr. Leonard said no. His attorney asked him how he could be sure, and he responded that he had never, in his entire career, remained in the treatment room while a patient disrobed, because that would be inappropriate. Respondent was not asked about and did not mention his interrogatory answer on direct; there was no motion to amend his interrogatory answer.
On cross-examination, Respondent was confronted with his interrogatory answer. Respondent acknowledged that he reviewed the typed answers to the interrogatories, signed them, and verified their accuracy “with the advice of my counsel.”
(Tr. 285). Respondent did not explain what he meant by that. However, following a period of silence, unprompted by any follow- up question, he added that he was under the impression that there was some time pressure to submit the answers. Respondent’s attempt to explain and avoid his interrogatory answer was evasive and unsatisfactory.
Respondent’s testimony purporting to change his answer and his “advice of counsel” explanation for why he answered “yes” to interrogatory 16 were wholly inadequate and not credible. It took him no time at all at hearing to come up with his answer; and his purported explanation that he was very sure of his answer because it was something he had never done and would never do stands in stark contrast with his claim that time pressure somehow caused him to rush to the answer of yes on advice of counsel. If the real answer were “no,” something Respondent claimed at hearing that he would know certainly and instantaneously, then Respondent’s explanation would mean that his counsel advised him to lie by giving an incriminating answer that admits inappropriate conduct. And if the real answer were that Respondent could not quickly remember, it would make no sense that his counsel would have advised him to give an unqualified and incriminating “yes” answer because of time pressure. But if Respondent could not quickly remember, then his immediate and total recall in his deposition and at hearing must have been borne of prepared, staged testimony to attempt to retreat from the prior unqualified incriminating admission.
The only reasonable and ethical “advice of counsel” that could have been given in answering interrogatories would have been to tell the truth. It is troubling that, assuming counsel advised his client to give the honest but incriminating answer to interrogatories, counsel for Respondent then set out to elicit contrary testimony.
In an effort to avoid these implications, counsel for Respondent objected to the admission of Respondent’s interrogatory answers into evidence, claiming that they were just “discovery” and could not be used as evidence. No legal authority to support that novel proposition was offered. The law is clearly to the contrary. See, e.g., Shaver v. Carpenter, 157 So. 3d 305, 308 (Fla. 2d DCA 2014) (“Answers to interrogatories certainly may be introduced” as substantive evidence, as long as answers are relevant); Diaz v. Impex of Doral, Inc., 7 So. 3d at
595 (“[U]nder Florida law, a party’s answers to interrogatories may be used as substantive evidence at trial.”); Alexander v. Alterman Transp. Lines, 387 So. 2d 422, 424 (Fla. 1st DCA 1980) (acknowledging that a party’s interrogatory answers offered by the adverse party are admissible into evidence under Florida Rule of Civil Procedure 1.340); Woodworth v. Woodworth, 385 So. 2d 1024, 1028 (Fla. 4th DCA 1980) (wife’s written answers to interrogatories in a prior proceeding were admissions of a party and admissible as substantive evidence when offered by the adverse party, her husband, in a subsequent action).
No motion seeking to withdraw or amend the interrogatory answer has ever been filed. Such a motion would have been necessary to request the unusual relief of allowing a party to withdraw or amend an interrogatory answer. See Fla. Admin. Code
R. 28-106.204(1) (“All request for relief shall be by motion.”). Any such motion would have had to articulate grounds that provide good cause. A full explanation of the circumstances would have been required, as well as facts demonstrating that the motion had been filed as soon as grounds to seek relief were discovered. Further, such a motion would have had to be signed by Respondent’s counsel, which would have operated as the certification required by section 120.569(2)(e), Florida Statutes. Whether good cause could have been demonstrated, had such a motion been properly and timely presented, cannot and need not be determined. Instead, the interrogatory answer stands as substantive evidence.
4/ Dr. Mathis appropriately did not attempt to opine one way or the other regarding Respondent’s intent, and he did not set out to formulate an opinion by reviewing depositions (or watching
video depositions), and by observing the testimony of witnesses at the hearing, including Respondent’s testimony. The disputed issue of intent is a matter for the fact-finder to resolve after hearing all of the testimony, judging the credibility of the witnesses, and considering the entire evidentiary record.
5/ In his deposition, Dr. Leonard reviewed J.S.’s daily medical encounter records (in evidence as Joint Exhibit 1) and reported that manual therapy was added as a new treatment for J.S. on December 9, 2014. Respondent did not recall why he added this new treatment; he acknowledged that it was not related to a new diagnosis and that the patient record did not explain or document why he added the new treatment: “I remember that wasn’t documented. I don’t know if it was this visit or not. J.S. reported that he either is or was a dancer and had a lot of history of hip and pelvic pain.” (P. Ex. 13 at 33). Respondent also linked the manual therapy he started doing to address the dancer issues with having J.S. completely disrobe: “Q: Do you remember why he started disrobing fully? A: I think it was when we--when we started doing some more work on his pelvis and hip with manual therapy. Q: Okay. Was there a discussion?
A: Yeah. It was about him being a dancer and having chronic issues there. . . . That he had a history of being a dancer and chronic hip and groin pain.” (P. Ex. 13 at 56-57). Respondent estimated that J.S. fully disrobed a “handful” of times.
(Tr. 283).
No evidence was offered to support Respondent’s claim regarding the reason for J.S.’s manual therapy, and no finding of fact can be made based on this hearsay. There is no record of
J.S. complaining about hip and pelvic pain caused by dancing. All of J.S.’s daily medical encounter records indicate he was going to Florida Wellness for treatment of his automobile accident injuries; there is no indication in the records that
J.S. was seeking treatment for dance-related injuries. Indeed, the initial detailed chiropractic evaluation and assessment on November 10, 2014, reported as follows regarding J.S.’s social history, without subsequent update: “Patient does not have a weekly exercise regimen, but does enjoy doing yoga a few times a week. Student; works at Publix.” (Jt. Ex. 1, Bates p. 5).
Florida Administrative Code Rule 64B2-17.0065(6) imposes the following minimum recordkeeping requirement on licensed chiropractors: “Once a treatment plan is established, daily records shall include: (a) Subjective complaint(s);
(b) Objective finding(s); (c) Assessment(s); (d) Treatment(s) provided; and, (e) Periodic reassessments as indicated.” If
Respondent’s explanation for the manual therapy were true, the complaint of pain in the hip and pelvic region caused by dancing would have been documented in the subjective complaint portion of those daily records when manual therapy was performed to address these issues, beginning on December 9, 2014. The documentation would have been in the medical encounter record for March 5, 2015. It was not.
Respondent argued that since he was not charged with recordkeeping violations, the lack of documentation cannot be considered. This argument misses the point. Rather than insinuating a violation of the recordkeeping requirements, the undersigned accepts the daily medical encounter records at face value. Those records support J.S.’s testimony that Respondent had told him that the purpose of the manual therapy was to address the hip rotation problem, and not because J.S. had complained of any hip, adductor, or groin pain or sought treatment for dance-related injuries.
6/ Respondent attempted to impeach J.S.’s testimony regarding the duration of the penis-stroking by claiming it was inconsistent with J.S.’s prior statements. There was no inconsistency.
Instead, Respondent mischaracterized J.S.’s testimony. Respondent’s PRO stated: “[J.S. testified] that the groping occurred for ‘a couple of moments[.]’” (R. PRO at 3, ¶ 11) (emphasis added). The PRO cited J.S.’s deposition (P. Ex. 4) at page 26 as the source. On that page, J.S. did not testify that the groping occurred for a couple of moments. Instead, J.S. answered a question regarding when the groping occurred, stating that the groping occurred “a couple of moments” after the grazing incidents that J.S believed to be accidental. (P. Ex. 4 at 26). By injecting the word “for” before the quote, Respondent made it appear that J.S. was asked, and was answering, how long the groping lasted. That question was not asked and answered until page 28 of J.S.’s deposition, when J.S. provided the same estimate of one minute that he has consistently given from
March 5, 2015, through his 2019 hearing testimony.
7/ Respondent testified in deposition and at hearing that when he made contact with J.S.’s penis, he apologized to J.S. In his deposition, Respondent said that his apology was “something like ‘I am so sorry. That was a complete accident.’” (Tr. 66).
Respondent also gave a similar description of his apology: “Something--I don’t recall verbatim, but it was something along the lines ‘I know this was--this was an accident. I’m really sorry.’” (Tr. 68). J.S. has consistently and credibly recounted
the apology as: “Sorry, you got the best of me.” J.S.’s testimony is credited.
8/ M.S. testified that he received an adjustment from Dr. Finson while J.S. was still in the treatment room with Respondent. M.S. said that he had previously received treatment from Dr. Leonard, but had become uncomfortable with him within the first couple of months after J.S. and M.S. had been going to Florida Wellness.
Dr. Leonard knew that J.S. and M.S. were in a relationship.
M.S. testified that at some point in the first month or two, Dr. Leonard approached M.S. a couple of times, asking M.S. about his relationship with J.S. and if they were happy, and asking
M.S. if he wanted to go out for drinks. M.S. clarified that the invitation was for “Dr. Leonard and myself, if him and I wanted to go get drinks.” (P. Ex. 3 at 7).
Although Respondent attempted to impeach M.S.’s testimony in various ways, conspicuous in its absence was any direct denial by Respondent of M.S.’s assertion that Respondent had invited M.S. to go out with him for drinks. Respondent did not address that testimony at all.
An attempt was made to indirectly undermine M.S.’s testimony regarding the drink solicitation, through an effort to impeach M.S.’s testimony that he had become uncomfortable with
Dr. Leonard and was seeing a different chiropractor. This effort had two parts: first, Dr. Leonard testified that he is the one who treated M.S. on March 5, 2015. Second, Dr. Finson’s deposition testimony was offered to establish that Dr. Finson never worked past 1:00 p.m. on Thursdays, and so he could not have treated M.S. that afternoon.
As for Dr. Leonard’s testimony, his own timeline simply does not add up. Dr. Leonard had his “recollection refreshed” by an inadmissible document, although he appeared to simply read from the document; and he reported that M.S. had an appointment with him—-Dr. Leonard--for an adjustment and dry needling at 4:20 p.m. on March 5, 2015 (and, in addition, an appointment for weighted neck PT, provided by one of the assistants). Dr. Leonard also reported that J.S. had an appointment at 4:20 p.m. on March 5, 2015, with Dr. Leonard for an office visit and acupuncture, plus the weighted neck PT to be administered by an assistant.
Crediting J.S.’s testimony that his appointment with Dr. Leonard was actually at 4:00 p.m., and that he was seen
promptly at 4:00 p.m., that would leave less than 32 minutes for
J.S. to have undressed, received all of the treatments
Dr. Leonard said he provided to J.S. in the private treatment room before and after the incident, get dressed, go to the open PT room, and not only start, but complete most of the weighted neck treatment. Just before 4:32 p.m., the office surveillance video in evidence began recording, and it shows the last minute of J.S.’s weighted neck therapy. M.S. had completed his adjustment and was waiting for J.S. Respondent was standing at a computer station. It is undisputed, and Respondent himself acknowledged, that M.S. came in to Florida Wellness with J.S. that day, and left with J.S. shortly after J.S. completed the weighted neck therapy. It was literally impossible for
Dr. Leonard to have adjusted M.S. at the same time he was behind closed doors with J.S. Most favorably interpreting Dr. Leonard’s testimony (for his benefit), he estimated that the time he spent providing treatment to J.S. on March 5, 2015, was 25 to 30 minutes, 15 minutes of which was before the incident. (P. Ex. 13 at 75). Respondent’s estimated time in the treatment room with
J.S. strains the timetable nearly to the breaking point, if not beyond. Respondent’s claim that he also treated M.S. between 4:00 p.m. and 4:32 p.m. is not credible and is contrary to the evidence.
The undersigned notes that the document Respondent used to refresh his recollection regarding appointment times, was Respondent’s proposed exhibit g, originally referred to as a billing record but purporting to show appointment schedules for March 5, 2015. That document was offered into evidence, but was not admitted for a number of reasons, not the least of which was that it had not been timely disclosed to Petitioner in accordance with the Order of Pre-hearing Instructions. Had the document not been excluded from evidence, its reliability to prove when specific patients were actually treated by specific providers would have been thoroughly undermined.
Dr. Finson’s testimony by deposition (limited by rulings sustaining objections) added nothing. Dr. Finson’s testimony was almost entirely predicated on a document that was excluded from evidence and removed from the transcript. See July 15, 2019, Order on Written Objections to Depositions. The document, purporting to show Dr. Finson’s appointments during the week of March 5, 2015, was not authenticated, and no predicate was laid for its admissibility. It seems that the document came to
Dr. Finson by e-mail from Dr. Leonard in preparation for his deposition, as opposed to a regular business record authenticated with foundational evidence from a records custodian. Without the document (and an identical one that had not been redacted to
remove all patient names, but which was not even offered as a deposition exhibit), Dr. Finson was unable to offer any testimony regarding March 5, 2015, such as whether he was in the office at all, what patients he may have seen, or what persons he may have spoken to. Dr. Finson’s recollection was not refreshed by a review of the redacted document that was provided to him in his deposition; he was still unable to testify from personal knowledge, as opposed to simply reading from the document. Thus, although Dr. Finson stated that he did not see M.S. on March 5, 2015, he admitted that he had no memory at all of that day, and was relying on the information on the inadmissible document.
Dr. Finson also attempted to testify in absolute terms that he has never worked after 1:00 p.m. on Thursdays since he has been working for Florida Wellness. March 5, 2015, was a Thursday, an undisputable fact that can be verified from any calendar source. However Dr. Finson’s testimony of absolutes is contrary to the documentary evidence. November 20, 2014, also was a Thursday as the same calendar source will confirm. J.S.’s daily medical encounter record for his November 15, 2014, visit to Florida Wellness contains the following electronic medical records (EMR) stamp on the left margin: “Electronically Signed and Reviewed by Finson, Charles 11/20/2014 19:40:38.” Respondent explained that the EMR system his office uses limits access to a daily medical encounter record to the licensed provider creating the record, and that the imprint on the side of the document identifies that provider and creates the date and time stamp when the provider completes and saves the record. That Dr. Finson worked after 1:00 p.m. on Thursday, November 20, 2014, is a chink in his absolute statement. Maybe March 5, 2015, was another chink; Dr. Finson failed to prove otherwise.
Finally, Dr. Finson equivocated on the question of whether he has ever seen patients on Thursday afternoons after the last appointment slot before 1:00 p.m. His answer was only: “Not to my recollection.” (R. Ex. 1 at 22).
The attempt to impeach M.S. failed. Indeed, it is curious that Dr. Leonard and Dr. Finson would base their efforts on such dubious documentation when there would have been actual business records, such as the daily medical encounter and perhaps a billing record, for M.S. As gleaned from Respondent’s testimony, the EMR stamp on the medical record for M.S.’s March 5, 2015, visit would identify the chiropractor who provided treatment and documented the treatment in the medical encounter report. But no such evidence was offered. Instead, M.S.’s testimony that he was
uncomfortable being treated by Dr. Leonard and had switched chiropractors before March 5, 2015, stands unrebutted.
9/ The evidence was not entirely clear regarding J.S.’s scheduled e-stim treatment and cancellation. Respondent makes much ado about the minor inconsistencies in the testimony of J.S. and M.S. on this collateral issue involving the circumstances of J.S.’s departure from Florida Wellness.
J.S. stated that he went to a treatment room where an assistant was setting up for e-stim; J.S. also said that he was moved to the treatment room for e-stim. He stated in his police statement that he asked “Alina” if he could leave without e-stim, and she checked with Dr. Leonard and reported to J.S. that it was not advised, but he could leave if he wanted.
M.S. testified that he followed J.S. out of the PT area and they went into a private treatment room, when J.S. said that he wanted to leave right away before e-stim. M.S. said that he asked someone if they could leave without J.S.’s e-stim, believing it was Dr. Finson, but expressing some uncertainty because it had been so long ago.
The undersigned is not persuaded that the lack of clarity on these collateral details undermines or calls into question the credibility of J.S.’s clear, convincing, and consistent testimony regarding the incident itself. After the incident, J.S. was upset. M.S. found J.S. upset in the PT area, where J.S. had already begun the weighted neck therapy treatment. It is not remarkable that J.S. and M.S. might not be able to clearly or convincingly recount collateral details regarding how J.S. extricated himself from further treatment, given his distraught demeanor visible in the office surveillance video.
Respondent offered testimony of Giana Rodriguez and Alina Trett, two registered chiropractic assistants who were present on March 5, 2015, attempting to establish that (1) J.S. seemed perfectly normal on March 5, 2015, with no signs of being upset or uncomfortable after the incident; (2) the office surveillance video showed J.S. leaving the PT room in the direction of the exit; (3) J.S. must not have been scheduled for e-stim treatment because if he had been scheduled, either Ms. Rodriguez or
Ms. Trett would have escorted him to the treatment room; (4) M.S. could not have asked Dr. Finson if J.S. could be excused from
e-stim treatment because Dr. Finson was not in the office that afternoon; and (5) J.S. could not have asked Ms. Trett if he could be excused from e-stim treatment because moments before
that would have occurred, Ms. Trett was in the open PT room and she did not escort J.S. to the treatment room. None of these points were established.
As a threshold matter, both Giana Rodriguez and Alina Trett testified that they had no independent memory of March 5, 2015, including any interaction they may have had with J.S. that day (although Ms. Rodriguez waffled after that admission, offering evasive testimony that lacked credibility). Their sole memory of March 5, 2015, is what they observed in the office surveillance video in evidence.
There is no competent proof of which assistant administered the weighted neck therapy to J.S. on March 5, 2015, which, in theory, might have provided that assistant with a better vantage point to observe J.S.’s demeanor (if the assistant actually remembered interacting with J.S. on that day, distinct from other days). According to J.S.’s daily medical encounter record for
J.S. on March 5, 2015, the weighted neck therapy (cervical structural exercises) is supervised, with documentation of reps and weights recorded in the “physical therapy notes within the patients [sic] chart.” (Jt. Ex. 1, Bates p. 71). But no PT notes were offered in evidence; those records were not included in Joint Exhibit 1. Reportedly, Dr. Ridge told the Department investigator that the PT records showed that Alina Trett administered the neck therapy to J.S. on March 5, 2015. However, that evidence is hearsay, contained in a supplemental investigation report that is part of deposition exhibit 1 to Janet Russell’s deposition (R. Ex. 1). As determined in the
July 15, 2019, Order on Written Objections to Depositions, the Janet Russell’s written summary of what she was told by someone else is hearsay.
Alina Trett acknowledged that she could not say whether she provided weighted neck therapy to J.S. that day, because the office surveillance video does not show the beginning of his treatment.
Giana Rodriguez’s testimony as a whole lacked credibility. Despite admitting that she had no independent memory of March 5, 2015, because it was so long ago, and that her sole memory of that day was what she saw in the office surveillance video, she nonetheless agreed with suggestive questions by Respondent’s counsel, purporting to recall specific details that went far beyond what was visible in the surveillance video. For example, Ms. Rodriguez attempted to say that she was the one who provided weighted neck therapy to J.S. that day, when the video only shows
that she was the one who removed the banded weights at the end of his session. She also claimed that while providing weighted neck physical therapy to J.S., she looked J.S. in the eyes and could tell that he was not upset or uncomfortable, but was relaxed and normal. She was effectively and thoroughly impeached in this regard.
The office surveillance video shows the limited vantage points of both Ms. Rodriguez and Ms. Trett to attest to J.S.’s demeanor.
The video shows that during most of J.S.’s final minute of neck therapy, Giana Rodriguez was occupied setting up another patient for weighted neck therapy in the second treatment chair several feet to the right of J.S.’s chair. She stood behind the other patient’s chair after setting up the weights, took a few steps away twice, then returned to the other patient to adjust the chair and then to adjust the weights while playing with her own hair, twisting it, lifting it off her neck, and holding it in an up-do. For most of the video, Ms. Rodriguez’s attention and focus was on her other patient (and her hair).
Ms. Rodriguez interrupted her supervision of the other patient for 17 seconds, to walk several steps over to behind J.S.’s treatment chair, adjust the chair from behind, lift the banded neck weights off J.S.’s head while standing behind him, walk around the chair to put the weights on a shelf against the wall, turn towards J.S. to take something from him, which she also put on the shelf, and then walk past J.S. and behind his chair to return to her other patient. She barely glanced at J.S. In fact, she was only positioned where she could have seen his face for two seconds: first, at 4:33:07, when she was focused on taking something from him; and second, at 4:33:10, as she walked around J.S.’s chair and returned to her other patient.
After Ms. Rodriguez removed the weighted neck band from J.S. and returned to the other patient, J.S. got up and walked across the room to M.S. J.S.’s eyes were downcast. He did not look over to Ms. Rodriguez. Ms. Rodriguez did not glance his way as he walked past; she was preoccupied with another patient. Her claim to have looked him in the eyes and sized up his mood and demeanor is plainly belied by the office surveillance video.
Alina Trett’s testimony was not so plainly lacking in credibility, but she was equally overreaching in an attempt to offer favorable testimony for Respondent. On direct, she said that she had no interaction with J.S. that day, but that he did
not appear upset or uncomfortable when he was in the open PT area. On cross-examination, she admitted that she only has a clear memory of what is seen in the video.
The video shows that Ms. Trett was standing several feet behind the back of J.S.’s head while he was seated in the weighted neck treatment chair. Ms. Trett was in front of a computer station at a standing desk that was perpendicular to, and perhaps three or four feet away from, the back of the treatment chair. She was not positioned to observe J.S.’s mood or demeanor while he was in the treatment chair. She did not look over at J.S. when he rose and turned around in the opposite direction from where Ms. Trett stood facing her computer monitor. As J.S. started walking across the room, his eyes were downcast. As J.S. neared the computer monitor Ms. Trett was facing, J.S. did not look up or over in Ms. Trett’s direction. Just as he began to pass by Ms. Trett, she turned away in the opposite direction from J.S., and Ms. Trett walked back to the treatment chair J.S. had just vacated. At most, there was a split second before Ms. Trett turned away when the side of J.S.’s face, with eyes downcast, may have been within her line of sight.
The video does not support the claims of Ms. Rodriguez and Ms. Trett that they were in a position to observe J.S.’s demeanor on March 5, 2015, to be able to say that J.S. did not seem upset or uncomfortable. Their concerted overreaching by attempting to provide helpful testimony for Respondent on this subject, while also admitting that their memories were limited to what is seen in the video, discredit their testimony.
As to point (2), both Giana Rodriguez and Alina Trett testified that the video showed J.S. left the open PT area to go to the exit. However, they both admitted that there were also treatment rooms out of camera range in the same direction, before one would get to the exit.
Since point (2) could not be established, Respondent tried to prove point (3) as a matter of standard office procedure.
This effort failed.
Ms. Rodriguez attempted to give counsel for Respondent the answers he was seeking; she tried too hard. Ms. Rodriguez agreed with suggestions by counsel for Respondent as to what the normal office procedure was, but her attempt to describe standard office procedure was simply incredible. She testified that if J.S. had e-stim scheduled after weighted neck therapy, she would have escorted him to the treatment room because the office practice is
to always do that. When asked what she would do if she had another patient (as she plainly did in the surveillance video), she said that she would take the other patient with her as she escorted the first patient to his next treatment room. Not only would that be a highly unusual practice that would surely offend both patients, but it would not have been possible in this instance, because Ms. Rodriguez’s other patient was receiving weighted neck treatment that required the patient to remain in the treatment chair with head tilted back, weighed down by banded neck weights. Overall, Ms. Rodriguez was far too willing to change her answer to agree with something suggested by counsel for Respondent to give any credence to her testimony.
Alina Trett’s testimony actually refuted Ms. Rodriguez’s on the apparent point that the office practice was to always escort a patient to the next treatment room. When asked whether she ever saw patients walk themselves to their treatment rooms, she said: “Only if we told them, you know, that they asked where we would go and if we told them like Room 2 or something beforehand.” (Tr. 203, lines 18-23).
As to point (4), for the reasons detailed in endnote 8 above, Dr. Finson’s testimony is not entitled to weight. He admitted that he has no memory of being in the office on March 5, 2015, and he failed to prove his claim that he never worked on Thursdays after 1:00 p.m. In an attempt to fill the holes in Dr. Finson’s testimony, Respondent showed Dr. Finson the office surveillance video, and elicited Dr. Finson’s testimony that
Dr. Finson was not seen in the video. However, Dr. Finson went far beyond that observation by offering the testimony that he knows he was not in the office at the time of the office surveillance video because he is not seen in the video. That testimony is baseless. By watching the video, Dr. Finson can go no further, credibly, than to say that he was not in the one- third of the PT area shown on camera during the one minute and
26 second video.
As to point (5), Ms. Trett testified initially that J.S. did not ask her if he could be excused from e-stim treatment that day. On cross-examination, she admitted that her only clear memory of what J.S. did or did not do that day is with regard to the brief scene in the video.
Finally, Respondent admitted in his deposition that he talked with both Giana Rodriguez and Alina Trett on March 5, 2015, after he spoke with Dr. Ridge and before the police arrived, although he claimed to not remember what he told them.
Whether as a result of that discussion or not, both Ms. Trett and Ms. Rodriguez displayed a bias to give favorable testimony for Respondent that went beyond their admittedly limited actual memories.
10/ Respondent testified that he was seeing a patient when the officers entered Florida Wellness. He also claimed that an unnamed employee who came to get him said that one of the police officers asked loudly, “Where is the doctor who sexually assaults his patients?” (P. Ex. 13 at 92). Respondent went out to the lobby, where the officers were waiting for him. He said he thought there were three officers: a black male, a Caucasian female, and a Caucasian male. He said that the black male was the one who came in visibly upset. He said he took the officers back to the treatment room where the incident occurred, but the black male officer left to go back to J.S. and M.S., while the other two interviewed him. Respondent’s embellishments were unsubstantiated and contrary to the video evidence. (P. Ex. 6).
11/ The undersigned is not persuaded by Respondent’s argument that J.S. has not consistently described the incident in all material respects. Respondent did not identify inconsistencies, but rather, noted that some details provided in J.S.’s 70-minute video deposition (60-page transcript) were missing from J.S.’s recorded three-minute interview by the Tampa police and in J.S.’s single-page written statement dated March 10, 2015, given to the Tampa police and later to the Department’s investigator, Janet Russell. For example, Respondent accused J.S. of changing his story to add grazes preceding the grope, noting that J.S. did not mention any grazes in his written statement or police interview. But J.S. was not complaining to the police about the grazes, because he believed they were accidental. It is not surprising that the more abbreviated materials were not as detailed as the deposition. But there were no inconsistencies as to the material facts.
Respondent also attempted to impeach J.S. with alleged inconsistent statements in an interview with the Department’s investigator, Janet Russell. Janet Russell’s deposition testimony was not helpful, as she had no memory at all of interviewing J.S. Respondent’s attempt to use Ms. Russell’s written report of her interview with J.S. to impeach J.S. was disallowed, for reasons detailed in the July 15, 2019, Order on Written Objections to Depositions. In summary, Respondent sought to use for impeachment Janet Russell’s one-page write-up of her interview with J.S., when the interview questions were not set forth, and statements attributed to J.S. were admittedly not
verbatim, but instead, were typed up from handwritten notes rather than a recording, all of which made the interview write-up of questionable accuracy. Moreover, Respondent did not show J.S. the written report of his interview during his deposition so that he could confirm or deny the accuracy and completeness of statements attributed to him, and explain the context, as would be appropriate impeachment protocol, found to be particularly necessary here under the circumstances.
J.S.’s clear, consistent testimony about the incident, in all material respects, was neither undermined nor impeached.
COPIES FURNISHED:
Rose L. Garrison, Esquire Department of Health Prosecution Services Unit Bin C65
4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
Benjamin W. Newman, Esquire
Wilson Elser Moskowitz Edelman & Dicker Suite 1200
111 North Orange Avenue Orlando, Florida 32801 (eServed)
Amanda M. Godbey, Esquire Department of Health Prosecution Services Unit Bin C65
4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
Noelle K. Sheehan
Wilson Elser Moskowitz Edelman & Dicker Suite 1200
111 North Orange Avenue Orlando, Florida 32801 (eServed)
Anthony B. Spivey, DBA, Executive Director Board of Chiropractic Medicine
Department of Health Bin C07
4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
Louise Wilhite-St Laurent, General Counsel Department of Health
Bin C65
4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 23, 2019 | Agency Final Order | |
| Sep. 13, 2019 | Recommended Order | Respondent committed sexual misconduct while treating a patient. Recommend license revocation. |
